The Law Commission, an independent law reform body based in England and Wales, is again asking whether electronic wills should be permitted in the UK. While the Wills Act 1837 is silent on this point, it is currently understood that electronic wills are not valid.
The question of electronic wills was first raised by the Commission six years ago in a consultation report which addressed a plethora of issues related to wills. However, the feedback at that time was not supportive of electronic wills.
In light of changes since the original consultation was completed, the Commission is now revisiting this issue and released a new supplementary consultation paper in October of 2023. Noteworthy changes since the prior consultation include the fact that electronic documents and signatures are now being used in other legal contexts in England, electronic wills have been approved in a number of jurisdictions in recent years, including British Columbia, and the enhanced role that technology played in the execution of legal documents during the pandemic.
In the supplementary paper, the Commission notes that if new wills legislation is enacted, electronic wills ought to be embraced since the demand for electronic wills is likely to increase in the future:
… This seems inevitable given that there are generations who have spent most of or their whole lives using digital technologies during their education, their careers, and their personal lives. Those who have electronically managed their lives may expect to be able to electronically prepare for what happens to their belongings when they die. That expectation may be increased the more that those belongings themselves take the form of digital assets. An inability of the law to accommodate that demand for electronic wills may reduce the likelihood of people executing a will at all …
The Commission also notes that electronic wills could come with “significant advantages” compared to paper wills, such as:
- being more secure against forgery or loss than conventional paper wills;
- providing built-in audit trails; and
- providing evidence of the time and date of execution, which could prove useful if the testator created multiple wills and it is necessary to determine which will was made last.
Rather than apply the current requirements articulated in the Wills Act 1837 to electronic wills, the Commission is recommending the introduction of “bespoke requirements” for electronic wills, such as requiring electronic wills to be registered, or generated using ledger technology, or alternatively, for electronic wills to be signed with sophisticated electronic signatures, such as qualified electronic signatures. The Commission wants to ensure that the requirements electronic wills are subject to are functionally equivalent to the requirements applicable to paper wills. In the words of the Law Commission, such requirements must ensure the following:
… that they provide strong evidence that the testator made the will, and of the testator’s testamentary intentions; that they caution the testator about the serious nature of making a will, prompting them to think carefully about the dispositions they are making; that they channel testators into well-understood and standard methods of accomplishing their wishes; and that they protect testators from fraud and undue influence in making their will.
However, bespoke requirements are also being recommended in light of more practical concerns, such as how electronic wills ought to be stored. On this point, the Commission notes that electronic wills may face a risk of obsolescence due to continuous software developments. How could such an instrument be probated, for example, if it cannot be opened or deciphered decades after being made because the prior technology is now obsolete?
Another question the Commission is consulting on is whether requirements governing electronic wills ought to be addressed in a new wills act, whether additional requirements for electronic wills ought to be set out in separate secondary legislation, or whether electronic wills ought to be addressed through an enabling power, giving the government the ability to choose at a later time whether or not to authorize electronic wills.
The window for submissions regarding electronic wills closed in December of 2023. Hopefully we will learn the outcome of the consultation in the coming months, and whether the Law Commission will move ahead with recommending electronic wills.
Have a great rest of your day,